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Estates & Wills & Trusts

Consequences of not having a will far outweigh the cost of drafting one

Creating a will can be overwhelming — hence why many people put it off — but Toronto trusts and estates lawyer Daniel Bernstein tells his clients not to think too far ahead when completing one.

“When you do a will, it’s not something that has to be forever. Think about the next three to five years and don’t worry about 20 years from now,” Bernstein tells AdvocateDaily.com.

“This helps because otherwise, it can be too much to think about and deal with.”

November is the Ontario Bar Association’s Make-a-Will Month, and Bernstein says the consequences of not having a will far outweigh the cost of drafting one.

“People don’t want to think about the inevitable or think they don’t have the budget, but if you don’t have a will, the government will tell you who your executor will be and who will get your estate,” he says.

Bernstein, a founding member with Weltman Bernstein, says some items to consider in a will include beneficiaries, a guardian for children under 18 as well as executors.

“There are several different issues you should be discussing with your lawyer when planning for wills. If you don’t have powers of attorney for property or personal care, you can set those up at the same time.”

Bernstein says he has a checklist for his clients to complete or they can work on it together to make it easier.

“I try to anticipate the answers that I’ll need in order to prepare the will,” he says. “Some of those questions include: Do you have registered investments? Do you have life insurance? Do you have a disabled child?”

Bernstein says some clients believe estate planning will be simple and straightforward, but they need to consider all of the scenarios that might happen at the time of death. 

“There’s no such thing as a ‘simple will’ because everyone has intricacies in their life,” Bernstein says. “You may think, ‘My will is easy as my estate goes to my wife and if she dies first, then it goes to my children.’ But what if the family all dies together?”

He says while there are do-it-yourself kits, and some lawyers have set up shop at department stores promising a quick and less expensive will, he cautions against going that route.

“Some of the important questions about your life won’t be asked by a lawyer drafting a quick will because he or she won’t have the time,” Bernstein says.

“It’s important that lawyers who draft wills don’t dabble. If you dabble in wills, you shouldn’t be drafting.”

Bernstein also says it’s key to update your will at least once a decade.

“If you haven’t touched your will in the last 10 years, there have likely been many changes in that time frame,” he says.

For those people who don’t believe they need a will, Bernstein says the distribution scheme of the Succession Law Reform Act will apply upon death.

If you’re legally married, your spouse gets the first $200,000 of your assets, and if you have more than that, then half of the remainder goes to the child, and the other half goes to the spouse, he says.

If you have two or more children, then two-thirds of the amount above the $200,000 goes to the children, and one-third goes to the spouse, Bernstein adds.

“If you’re not legally married, the distribution scheme doesn’t include the common-law spouse at all,” he says. “That spouse would then have to bring a claim for dependent’s relief forward.”

Bernstein says this is why it’s crucial for common-law couples to have wills.

He says the order of distribution without a will if there is no spouse and no children are parents, siblings, nieces and nephews, next of kin.

“If there are no living relatives, it will all go to the Crown.”

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